Industrial Property Law

The court may, alternatively, fix a lump sum as damages which must be higher than the amount of royalties or charges that would have been due if the infringer had requested authorization for the use of the trademark. This sum is not to the exclusion of the compensation for the non-pecuniary harm caused to the injured party . This method of evaluation facilitates the proof of harm, which can be pro …

Lump sum

The court may, alternatively, fix a lump sum as damages which must be higher than the amount of royalties or charges that would have been due if the infringer had requested authorization for the use of the trademark. This sum is not to the exclusion of the compensation for the non-pecuniary harm caused to the injured party . This method of evaluation facilitates the proof of harm, which can be provided by the trademark proprietor by supplying the tariffs it applies to licensees.

This method of calculation can only be used by the court at the request of the injured party, and is only intended to be used in certain cases, in particular when it is difficult to determine the amount of harm actually suffered. Its purpose is to allow for compensation based on an objective criterion, while taking into account the costs incurred by the proprietor such as the costs of research and identification . The court must justify the amount of damages it awards. Notably, it cannot deem it unnecessary to determine the quantity of products involved and arbitrarily assess the harm at a lump sum .

Art. L. 716-4-10, para. 2, IP Code; Cass. com. 6 September 2016, LawLex202200005947JBJ, repeating the solution set forth by a judgment of the CJEU of 17 March 2016 (Case C-99/15 Christian Liffers).

Directive No 2004/48/EC of 29 April 2004, OJ L 157 of 30 April 2004, recital 26.

Cass. com, 7 May 2019, LawLex202100005679JBJ.

Industrial Property Law

164. Lump sum

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

164. Lump sum

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise